Possession of a firearm after misdemeanor conviction for domestic violence is not necessarily a felony.

Possession of a firearm after conviction for a misdemeanor crime of domestic violence is a federal felony (18 U.S.C. § 922(g)(9)). This being said, “crime of domestic violence” as used in this law is not as clear as you may think and it likely not satisfied by a misdemeanor domestic violence conviction in Michigan pursuant to United States v. James Castleman, a relatively recent decision of the Sixth Circuit of the Court of Appeals.

In 2001, Castleman pleaded guilty to one count of misdemeanor domestic assault in Tennessee. That offense makes a defendant liable for a misdemeanor if he intentionally, knowingly or recklessly causes bodily injury to a person with whom he has a domestic relationship or causes that person to reasonably fear bodily injury. Castleman’s 2001 indictment asserted that he “did intentionally or knowingly cause bodily injury to the mother of his child. Seven years later, federal agents discovered that Castleman and his wife were buying firearms from dealers and selling them on the black market. Thus, he was charged with possession of a firearm after a misdemeanor domestic violence conviction.

Section 921(a)(33)(A) of Title 18 defines a “misdemeanor crime of domestic violence” to include any offense that: (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

The district court dismissed the § 922(g)(9) counts in Castleman’s indictment, reasoning that Castleman’s misdemeanor domestic assault conviction did not qualify as a domestic violence crime requiring the “use or attempted use of physical force” as defined in the statute. Drawing upon cases from some of our sister circuits, the district court found the statute to require “force in the sense of violent contact” instead of merely “force as a scientific concept relating to the movement of matter.”

The United States appealed the dismissal of Castleman’s charges. The Court of Appeals summarized the issue on appeal as follows: “we must determine the degree of force necessary for a misdemeanor domestic battery offense to qualify as a misdemeanor crime of domestic violence.”

In affirming the District Court’s dismissal of the charges, the court found, “‘Misdemeanor crime of domestic violence’ is most naturally interpreted to mean any crime requiring strong and violent physical force, which happens to be a misdemeanor. Under this formulation, a misdemeanor crime of domestic violence is part of a subset of misdemeanor offenses which does not include all assault and battery offenses, but rather only those assault and battery offenses in which violent physical force is involved.”

In the case of the Tennessee domestic violence statute, a conviction was possible if the defendant acted with recklessness and caused an injury. The court found the Tennessee statute inadequate to qualify as a “domestic violence conviction” for purposes of 18 U.S.C. § 922(g)(9) because it did not require an intentional assault and did not require a serious physical injury. Given that the statute did not qualify by its terms, the appellate court then turned its attention specifically to Castleman’s indictment to see if it alleged acts which would qualify it as sufficient act of domestic violence. It found that it did not.

Michigan’s Domestic Violence Law

Turning towards an analysis of Michigan’s Domestic Violence Statute, it appears clear that it would likewise NOT categorically qualify as a predicate offense. The Tennessee statute required an injury; Michigan’s DV statute contains no requirement for an injury. Also, Michigan’s DV statute allows for a conviction even in the case of an attempted “offensive” touch as opposed to a violent touch or attempted violent touch.